Information for people signing and witnessing wills during COVID-19

Epidemic Preparedness (Wills Act 2007—Signing and Witnessing of Wills) Immediate Modification Order 2020

This information outlines the effect of the Immediate Modification Order on the requirements for signing and witnessing wills. It is not intended as legal advice. Please also see guidance for people needing to take oaths, affirmations or declarations during COVID-19.

  • In light of the COVID-19 epidemic, the Government has made a temporary law change to modify the requirements for signing and witnessing wills under section 11 of the Wills Act 2007.
  • This note provides information for people signing and witnessing wills while the COVID-19 Epidemic Notice is in force.

What is an Immediate Modification Order?

  • Immediate modification orders (IMOs) are issued under section 15 of the Epidemic Preparedness Act. IMOs are considered and agreed to by Cabinet and take the form of Orders in Council.
  • IMOs cannot be used to substantially rewrite parts of the law. They can only be used where there is a statutory requirement or restriction that is impossible or impracticable to comply with, or comply with fully, during an epidemic.

What changes does this make?

  • This modification order amends section 11 of the Wills Act 2007, which sets out signing and witnessing requirements for wills.
  • The change allows wills to be signed and witnessed using audio-visual links (for example, Zoom, Skype, Facetime etc):
    • A person who is signing on the will-maker’s behalf (pursuant to section 11(3)(b)), can sign in front of the will-maker by audio-visual link from another place.
    • Witnesses can witness the will-maker sign a copy of the document by audio-visual link.
    • Witnesses can sign a copy of the document in front of the will-maker by audio-visual link.
    • All people signing a copy of the will must make it clear on the copy that it is signed this way because an epidemic notice is in force.
    • Photographs or scans of the signed copies must be sent as soon as practical to a person who has been chosen to hold the document and all photographs or scans of signed copies of the will. If a lawyer or trust company has been involved in preparing and witnessing your will, they can hold the document and all photographs or scans of signed copies of the will.
  • The changes made are temporary. The modification order will expire after the Epidemic Notice is lifted, and the law will return to normal.

Why did the law need to be modified?

  • It is important that people are able to make a will while the Epidemic Notice is in force.
  • During Alert Levels 3 and 4, people who live with other adults may be able to sign a will in the physical presence of two witnesses (for example, if no disposition in the will to or through a witness will be void under section 13 of the Wills Act 2007). However, people who live alone, or with one other adult, will not be able to do so. For those people, it is “impossible” or “impracticable” to sign a will in the physical presence of two witnesses.
  • Even if a lower Alert Level applies, it is important for vulnerable people (those who are at higher risk of catching COVID-19) to remain isolated.
  • This change does not alter the current law regarding the signing and witnessing requirements for wills when a court has authorised a person to execute a will for, and on behalf of, a person under section 55 of the Protection of Personal and Property Rights Act 1988. However, we are looking at this, and considering whether a further change is necessary.

What do I do with the copy I have signed afterwards?

  • After you sign a copy of the will, you must take a photograph or scan it and send that to the person designated to hold the will (the physical document, and photographs or scans of all the signed copies) with no delay.
  • It is a good idea to hold onto the physical copy you have signed and keep it somewhere safe.

Do I need to make another will after the COVID-19 epidemic ends?

  • If you make a will while the Epidemic Notice is in force following the modified requirements for signing and witnessing, it is a valid will. You do not need to make another will unless you want to change or revoke your will.

Can I sign and witness a will via audio-visual link after the COVID-19 epidemic ends?

  • This change only applies to wills made while the Epidemic Notice is in force. Once the Epidemic Notice is lifted, the law will return to normal.

What if I make a will and can’t get my will signed and witnessed either in-person or by audio-visual link because of the restrictions in place?

  • If you make a will while the Epidemic Notice is in force and you cannot get it signed and witnessed either in-person or by audio-visual link because of the restrictions in place, you can get it signed and witnessed after restrictions have ended. It is a good idea to let the people you want to be witnesses know that you want them to witness it after restrictions have ended and make it clear in the document that you cannot get it witnessed due to the epidemic. The will does not comply with the formal requirements until it has been signed and witnessed.
  • However, the Wills Act allows the High Court to make an order declaring a will to be valid even if it doesn’t comply with the formal requirements, if it is satisfied that the document expresses the deceased person’s intentions.

What happens if the will-maker dies before the will has been signed and witnessed – either via audio-visual link while the Epidemic Notice is in force or in person?

  • The Wills Act allows the High Court to make an order declaring a will to be valid even if it doesn’t comply with the formal requirements, if it is satisfied that the document expresses the deceased person’s intentions.

← Back to the news

This page was last updated: